Who Owns the Copyright Interest in a Creative Work?

Giselle Ayala Mateus, Esq.

The creation of a piece of art, a drawing, a cartoon, a tv show, or any other creative work can be the result of an individual’s work or the product of the joint efforts of several individuals. In this context, if two or more individuals are involved in a creative process, it is necessary to determine what are the rights of each party.

A copyright interest grants to the author of a work the right to restrict the unauthorized use of his creation, and the right to decide how, where, and when can the work be used, copied, or displayed. In this context, when a work is created by one person but the copyright interest is owned by another, such a work is called a “work for hire” and the copyright interest is assigned to the person who hires the performer. Let’s see.

When is a work of authorship… a work for hire?

According to the laws of the United States, work is for hire when it is created within the scope of an employment relationship or when it is a commissioned work.

Within the scope of an employment relationship

When a person is hired as an employee, the person is hired to perform services on behalf of his or her employer. Accordingly, it is the employer who provides the place, the tools, the instruction about when, where, and how is the service to be performed. In the development of this employment relationship, all works created by the employee within the scope of his employment pertains and are owned by the employer who is the rightful copyright owner.

To avoid conflict, confusion, or legal issues it is important to understand that if a person is hired to perform one activity, and the work of authorship is created within the scope of a different totally unrelated activity, there could be an issue in regard to who is the copyright owner of such works. Considering this, when it comes to works made for hire it is important to keep in mind some of the factors that can be considered by a court if there is a conflict.

  • What is the employee’s job?
  • What are the employee’s responsibilities?
  • Where was the work created? At the workplace or at a third location?
  • Was the work created under the supervision of the employer or an employer’s agent?
  • Is there work related to the employee’s job?
  • Was there a written agreement between the employer and the employee in regard to the copyright interest in the work?
  • Who provided the tools and the materials used to create the work?

As a commissioned work

In general terms, specially commissioned works, this is, works created by an independent contractor, are not considered works made for hire unless the parties expressly agree to it writing and the work falls into one of the following statutory categories:

  • A contribution to a collective work
  • A part of a motion picture or other audiovisual work
  • A Translation
  • A Supplementary work (a work prepared for the purpose of introducing, explaining, or revising the work of another author)
  • A Compilation
  • An Instructional text
  • Answer material for a test

In this context, it is important to understand that if a work is not within the categories just mentioned it will not be regarded as a work made for hire and the interested party will need to execute an assignment agreement. Additionally, under the current law, the commissioning party must be the “motivating factor” in the creation of the work, in other words, the work must be made at the commissioning party’s request. However, the commissioning party need not possess or exercise artistic control over the performer.

It is also worth noting that while a commission agreement must be signed by the party to charged an assignment agreement must be signed by both parties, the assignor and the assignee. In this scenario, it is fundamental not to lose sight of the fact that under the U.S. Copyright Law, authors who have transferred their rights to another can terminate the transfer and “recapture” their copyright interest during a statutorily mandated period. This is a 5-year period commencing 35 years from the date of the transfer.


Originally published at https://www.ayalamateus.com on December 4, 2020.

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